Opinion
C086962
09-12-2019
THE PEOPLE, Plaintiff and Respondent, v. SOVANNA RY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STKCRFE20060010709; SF101577A)
Defendant Sovanna Ry appeals the order denying his motion to vacate his conviction following his plea of guilty to possession of methamphetamine for sale. He contends the court abused its discretion in denying the motion, as the trial court's immigration consequences advisement was inadequate. We affirm.
BACKGROUND
Defendant's family came to the United States when he was a young child. In 1988, when he was six years old, he became a legal permanent resident of the United States. In 2007, defendant pled guilty to possession of a controlled substance for sale while in possession of a firearm. Upon taking his plea, the trial court advised defendant of the sentence he would receive for this plea, including fines and required registration as a drug offender; the maximum sentence defendant was exposed to and the consequences of violating his probation, including an increased sentence and return to prison; and, the consequences of sustaining another drug related conviction. In the midst of these advisements, the trial court stated: "The reason I am telling you this is in the hope of trying to convince you not to get involved with drugs again. Because, if you do, there will be a very, very high penalty to you for doing that." The trial court then continued with the plea advisements, "If you are not a citizen of this country, this will result in you being deported, never allowed back in this country or never become a naturalized citizen of this country, because this offense being on your record and whatever other offenses you have." The trial court continued with the advisements that defendant would be prohibited from possessing a firearm or ammunition and explained defendant's plea was waiving his right to a jury trial. The trial court asked if defendant understood everything the trial court had explained, and defendant answered, "Yes, sir." In accordance with the plea, the trial court granted defendant five years' probation, conditioned on him serving one year in county jail.
In 2018, defendant moved to vacate his conviction and withdraw his plea pursuant to Penal Code section 1473.7. He argued he received ineffective assistance of counsel because his attorney did not advise him of the immigration consequences of his plea or seek a more beneficial alternative plea. At the hearing on the motion, defendant also argued the trial court's advisement of the immigration consequences under section 1016.5 was deficient. Specifically, counsel contended the trial court's advisement was a "complete runon [sic] sentence" and defendant was not a "first-English language speaker," rather defendant had learned English when he was six or seven years old and did not have an interpreter. After reading the advisement, the court found it "quite thorough" and denied the motion.
Further references are to this code.
DISCUSSION
Defendant contends the court abused its discretion in denying his motion to vacate under section 1016.5. He contends the trial court's advisement of the immigration consequences of the plea under section 1016.5, subdivision (a) was improper and deficient. He argues the advisement was deficient because it did not specify which conviction might trigger future adverse immigration consequences. The advisement told defendant " 'this will result in you being deported . . . , without clarifying to [defendant] that the 'this' the court was referring to was [defendant's] guilty plea." Defendant continues that the use of the word "this" in the advisement, combined with the trial court's use of the word "this" when indicating it was advising defendant of the consequences of committing another crime could have misled defendant to believe there were immigration consequences to committing a subsequent offense, not the current conviction.
Prior to accepting a guilty plea, a trial court must advise the defendant, on the record, "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (§ 1016.5, subd. (a).) If the trial court fails to give such an advisement, and the defendant shows conviction of that offense may have adverse immigration consequences, "the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea . . . and enter a plea of not guilty." (§ 1016.5, subd. (b).) To prevail on the motion, "defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement." (People v. Totari (2002) 28 Cal.4th 876, 884.) Defendant here has not established he was not properly advised of the immigration consequences as provided by the statute.
We review an order denying a section 1016.5 motion for an abuse of discretion. Under this standard, we must decide " 'whether the trial court's findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.' " (People v. Clancey (2013) 56 Cal.4th 562, 578.) It is defendant's burden to show the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Limon (2009) 179 Cal.App.4th 1514, 1518.) He has not done so.
Defendant makes no appellate claim under section 1473.7 that he received ineffective assistance of counsel. Although defendant heads his argument as the trial court erring in denying his section 1473.7 motion, the substance of his argument is that the trial court erred in denying his motion under section 1016.5, including as to the applicable standard of review. We review a denial of a motion to vacate under section 1016.5 under an abuse of discretion standard. We review a trial court's denial of a motion to vacate a conviction under section 1473.7 de novo because it presents "a mixed question of fact and law that implicates a defendant's constitutional right." (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76.) Under either standard, we defer to the trial court's factual determinations if they are supported by substantial evidence. (Ibid.) --------
The immigration advisement pursuant to section 1016.5 need not be in the exact statutory language; substantial compliance is all that is required, "as long as the defendant is specifically advised of all three separate immigration consequences of his plea." (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 207-208 [substantial compliance with the statutorily described advisement is adequate]; People v. Limones (1991) 233 Cal.App.3d 338, 345 ["exact language of the advisement is not crucial"].) Those three consequences are "deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (§ 1016.5, subd. (b).) The trial court's advisement was in substantial compliance with section 1016.5. The advisement specifically delineated that as a result of this offense being on defendant's record, i.e., this plea, if defendant was not a citizen, he was subject to deportation, not being allowed reentry, and being denied naturalization. Because the advisement substantially complied with the statute, we find no abuse of discretion in the denial of defendant's motion to vacate.
DISPOSITION
The order denying the motion to vacate is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Hoch, J.